T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520

Safety, Licensing Appeals and Standards Tribunal Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto, ON M7A 1N3

In Person Service: 20 Dundas St. W., Suite 530, Toronto, ON M5G 2C2

Tel:

416-314-4260

1 800-255-2214

TTY:

416-916-0548

1 844-403-5906

FAX:

416-325-1060

1 844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2

Tél. :

416-314-4260

1 800-255-2214

ATS :

416-916-0548

1 844-403-5906

Téléc. :

416-325-1060

1 844-618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before:

Linda P. Lamoureux, Executive Chair

Date:

July 27, 2018

File:

17-000835/AABS

Case Name:

T.S. v. Aviva General Insurance Canada

Written Submissions By:

For the Applicant:

Alim Ramji, Counsel

For the Respondent:

Samantha Mason, Counsel

BACKGROUND

1. T.S. was injured in an automobile accident on January 16, 2015 and sought funding from his insurer, Aviva General Insurance Canada (“Aviva”), for medical benefits in accordance with the Statutory Accident Benefits Schedule – Accidents on or after September 1, 2010¹ (the “Schedule”).

2. Under the Schedule, those injured in automobile accidents are entitled to different levels of benefits according to the severity and classification of their impairments. Relevant to this case is the minor injury framework, which caps medical and rehabilitation benefits at $3,500.

3. After exhausting the $3,500 monetary cap, T.S. made claims for further medical benefits for treatment and assessments. T.S. has the burden of proving that his impairment falls outside of the minor injury framework before he can access enhanced benefits and funding.² Aviva denied his claims, and took the position that he was not entitled to any additional benefits beyond the framework.

4. In response, T.S. applied to the Licence Appeal Tribunal (“the Tribunal” or “LAT”). His position is that the chronic pain he developed after the accident is not a “minor injury” as defined by the Schedule and, thus, he is entitled to medical benefits beyond the minor injury framework’s monetary cap.

5. The Tribunal disagreed. It held that T.S.’s chronic pain is a “minor injury” as defined by the Schedule and, thus, denied him further benefits. T.S. now asks me to reconsider the Tribunal’s decision.

6. The central issue in this reconsideration is whether the Tribunal misinterpreted the term “minor injury”, and more specifically, “clinically associated sequelae”, as defined in the Schedule.

RESULT

7. For the reasons that follow, I find that the Tribunal made significant errors in rendering its decision. The Tribunal did not adequately consider the context and purpose of the Schedule and, ultimately, adopted a narrow interpretation of the relevant provision at issue. In doing so, the Tribunal failed to recognize that T.S.'s chronic pain exceeds the Schedule’s definition of a “minor injury.”

8. I therefore grant the request for reconsideration with respect to the “minor injury” issue and several of the disputed benefits in his application.

ANALYSIS

9. The modern approach to statutory interpretation involves considering three factors: the language of the provision at issue, the context in which the language is used, and the purpose of the legislation or statutory scheme in which the language is found.³ With this approach in mind, I find that the Tribunal’s decision was based on the erroneous and overly narrow interpretation of the term “clinically associated sequelae”.

10. A “minor injury” is defined in s. 3 as follows:

“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.

T.S. submitted that his chronic pain syndrome is not a “clinically associated sequelae” to any of the injuries included in that definition.

11. The Tribunal disagreed. The Tribunal recognized that, two years after the accident, T.S. was diagnosed with chronic pain syndrome that had not yet resolved. The Tribunal stated the following at para 32:

After reviewing the medical evidence submitted by both parties, I conclude that the applicant does suffer from chronic pain syndrome as a result of the accident (emphasis mine).

In effect, it held that chronic pain is a “sequelae” of the injuries enumerated in the definition of “minor injury” and, thus, is subject to the $3,500 monetary cap on medical and rehabilitation benefits.

12. In my opinion, the Tribunal’s findings that T.S. suffered from chronic pain should have sufficed to deem his impairment more serious than a “minor injury”. The fact that the Tribunal recognized that the medical benefits T.S. sought to address his chronic pain were warranted is significant. In paragraph 36, the Tribunal stated the following:

I have no basis on which to deny the applicant’s assertion that medical benefits and costs of assessments enumerated above as issues (iv)-(vi) in para. 5 are reasonable and, having found his medical evidence persuasive, I also find that they are necessary (emphasis mine).

However, the Tribunal’s ultimate decision, that T.S.’s chronic pain is a “minor injury”, did not align with its findings noted above.

13. In paragraph 46, the Tribunal summarized its rationale as follows:

I find that the chronic pain symptoms in this case fall within the MIG, based on:

(i) My own reading of the plain meaning of s. 3(1) of the Schedule and its

definition of “minor injury” to include sequelae, reinforced by the

persuasive weight of the above-noted finding in B.U. v Aviva.

(ii) My above-stated view that Arruda has limited persuasive value in this case.

(iii) The lack of medical evidence or argument to address whether or not the

applicant’s chronic pain syndrome is a sequelae to injuries defined as

“minor” by the Schedule.

14. In my opinion, the Tribunal erred when it found that T.S.’s chronic pain falls within the minor injury framework and, thus, denied him reasonable and necessary medical benefits. A plain reading of the definition reveals a glaring absence of any reference to CPS in the list of enumerated injuries that are included in s.3. In addition, the minor injury framework provides a treatment model for the early resolution of minor impairments – chronic pain by its very nature does not fall within such a model. It should have found that T.S.’s chronic pain is not captured by the Schedule’s definition of “minor injury” and, in turn, “clinically associated sequelae”.

15. The term “clinically associated sequelae” is undefined in s. 3 of the Schedule. In order to provide further guidance on the interpretation of “minor injury”, the Superintendent of Financial Services released a Minor Injury Guideline (“MIG”).⁴ The MIG is incorporated by reference in the Schedule, and is therefore binding according to s. 268.3(2.1) of the Insurance Act, R.S.O. 1990, C. I.8 (“Insurance Act”). Unfortunately, however, the MIG does not define “clinically associated sequelae”.

16. The Tribunal found that the reference to the term “clinically associated sequelae” in s. 3, although undefined, includes chronic pain. I disagree. My interpretation of the language used in s. 3 and the binding MIG, together with the context and purpose of accident benefits leads me to conclude that chronic pain is not captured by the Schedule’s minor injury impairment level.

17. On a plain reading of “minor injury” in s. 3 of the Schedule, the legislature lays out a list of physical injuries that are included in the definition of “minor injury”. These are “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Significantly, the language of the provision does not mention chronic pain. The legislature opted not to include chronic pain in the definition.

18. The MIG sets out the meaning of “minor injury” in more detail, such as impairments that do and do not come within the minor injury framework. Chronic pain is not referenced as an impairment that comes within the MIG. In fact, the MIG’s definition section, which mirrors the definition of “minor injury” in s. 3 of the Schedule, provides additional definitions of the various injuries listed in s. 3. It defines sprains, strain, subluxation, whiplash injury and whiplash associated disorder. Again, however, it does not refer to chronic pain.

19. The MIG also provides a “functional restoration model” for treating minor injuries. It outlines a structured 12-week treatment program for those injured in car accidents that sustain a minor injury. The MIG references treatment for ‘Whiplash Associated Disorder’ (“Whiplash”) but includes no reference on how to treat or diagnose chronic pain. By definition, chronic pain is a condition that persists for three to six months after an initial trigger or injury.⁵

20. Taking together the language used in s. 3 and the binding MIG, I conclude that “minor injury” does not encompass an impairment such as chronic pain because chronic pain is not included in the definition and does not fit into the MIG’s 12-week treatment program.

21. The only reference to chronic pain in the MIG can be found in Appendix A “Getting the Facts about Whiplash Brochure” under the section ‘Avoiding Chronic Pain’. This section recommends that Whiplash sufferers not overestimate their physical damage, accept the advice of their health care professionals and focus on “getting on with your life, rather than on the injury!”⁶ In my opinion, this is further support that the legislature, in creating the MIG, contemplated that some Whiplash sufferers may develop a more serious condition such as chronic pain but that this condition may be avoided by following the treatment program suggested by the MIG. Put another way, some applicants may develop more serious conditions such as chronic pain and will require additional treatment beyond the treatment program described in the MIG.

22. Aviva suggests that that the undefined term “clinically associated sequelae” places restrictions on applicants suffering from chronic pain such that they are unable to gain access to enhanced benefits beyond the minor injury’s cap of $3,500. I disagree. The minor injury framework, as evidenced by the MIG, aims to reduce the risk of Whiplash sufferers developing more serious conditions such as chronic pain. To presume that the term “clinically associated sequelae” already includes more serious impairments such as chronic pain or even psychological conditions, such as depression, would result in an absurd interpretation. In my opinion, the term “clinically associated sequelae” cannot apply to every complication that may arise. A more reasonable interpretation is that the minor injury remains restricted to minor complications arising out of the injuries that are specifically listed in the definition.

23. In this case, T.S. provided evidence of a specific diagnosis, chronic pain syndrome, which the Tribunal accepted. “Chronic pain can be described as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being. A simpler definition for chronic or persistent pain is pain that continues when it should not.”⁷ For these reasons, I do not believe that chronic pain, as described above is captured by the minor injury framework or the term “clinically associated sequelae”. In my opinion, the Tribunal created unnecessary barriers to treatment that were not intended by the legislature. It is clear to me that the Tribunal erred by presuming that the drafters of the legislation intended for chronic pain sufferers to be captured by the minor injury framework and denied access to a higher level of medical and rehabilitation coverage.

24. In addition, the Tribunal’s approach is inconsistent with the Legislation Act, 2006, S.O. 2006, c. 21 that states:

64. (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

The Tribunal should have interpreted s. 3 and the term “clinically associated sequelae” liberally to promote the recovery of those who are injured in automobile accidents instead of limiting the benefits available to applicants suffering from chronic pain to 12 weeks and $3,500.

25. The accident benefits system, as suggested by the Tribunal, cannot fulfill its purpose of providing timely access to treatment if the minor injury framework restricts applicants suffering from chronic pain. If the legislators intended to be so restrictive as to oust the needs for additional treatment for specific injuries, such as chronic pain or psychological conditions, then they would have done so explicitly in the Schedule, as they did for several other injuries identified and listed in s. 3 of the Schedule and the MIG.

26. I am persuaded that by narrowly interpreting the definition of minor injury to mean that it includes T.S.’s chronic pain, the Tribunal created an unjust or unacceptable result of depriving much needed enhanced medical benefits to accident victims most likely in greatest need, and that this is contrary both to the intent and to the plain wording of the Schedule and the MIG.

27. The objectives of the MIG are noted as follows: ⁸

• to speed access to rehabilitation for persons who sustain minor injuries in auto accidents;

• to improve utilization of health care resources;

• to provide certainty around cost and payment for insurers and regulated health professionals;

• to be more inclusive in providing access to treatment without insurer approval for those persons with minor injuries as defined in the SABS and as set out in part 2 of the MIG.

28. Aviva’s position is essentially that T.S. will have to live with his chronic pain without access to treatment beyond the MIG because the objectives of certainty around cost and payment for insurers dictate that “an insurer must look to initial injuries and diagnoses as indication of whether an insured’s injuries fall within the MIG”. Further, Aviva submits it would “directly defeat the said objective if an insurer has an obligation to wait the requisite number of months to determine whether a diagnosis of chronic pain was forthcoming.” I find that Aviva’s position is contrary to the very purpose of the legislature's goal to provide timely access to medical treatment to improve recovery regardless of fault.

29. Significantly, Aviva admits that on November 14, 2016 (almost two years after the accident) it received the orthopaedic assessment report of Dr. Bhargava with a diagnosis of chronic pain. However, Aviva’s position is that, if such report were considered sufficient evidence to remove an applicant from the MIG, there would be no possibility of ‘certainty’ being achieved in terms of the cost objective. In my opinion, cost is but one objective of the MIG, and Aviva’s position is contrary to the consumer protection policy underlying the Schedule and the liberal interpretation mandated by Smith and Co-operators.

30. In this case, T.S. has met the burden on the balance of probabilities that his injuries fall outside the minor injury framework by providing compelling evidence that he has suffered injuries that, due to their persistence in the years since the accident, fall outside the framework by virtue of his chronic pain. The Tribunal’s decision was incompatible with the plain language of the provision, the context, and purpose of the accident benefits scheme.

31. Because of my finding, the Tribunal’s decision on the issue of minor injury is cancelled. This affects some of the other benefits at issue in the decision. Specifically, the medical benefits listed in paragraph 4 (iv), (v), (vi), and (vii) of the Tribunal’s decision:

• Treatment plan dated June 1, 2015 for $2,755.06,

• Treatment plan dated November 5, 2015 for $2,399.49,

• Cost of examination for an orthopaedic assessment for $2,460.00, and

• Cost of examination for an in-home assessment for $2,248.90.

These benefits were deemed reasonable and necessary by the Tribunal and were not awarded to T.S. on the sole basis of the Tribunal’s finding on the issue of “minor injury”.⁹ Therefore, T.S. is now entitled to payment of these benefits together with interest pursuant to the Schedule.

32. The Tribunal’s decision denying the remaining medical benefits stands. These are outlined in the Tribunal’s decision as 4 (ii) and (iii) (cost of examination for psychological assessment for $2,460.00 and psychological treatment plan dated November 1, 2016 for $3,841.48). I did not find that these benefits were directly related to the minor injury finding nor did I find that the Tribunal made any significant errors in its analysis or findings regarding T.S.’s entitlement to these benefits. In fact, the Tribunal provided clear reasons (paragraphs 11-27) for denying these benefits. Therefore, I decline to cancel the Tribunal decision with respect to these benefits.

CONCLUSION

33. The Tribunal made an error that is significant enough to warrant that its decision regarding T.S.’s chronic pain injury as a “minor injury” be cancelled. Accordingly, I exercise my discretion under Rules 3 and 18 of the Tribunal’s Rules of Practice and Procedure to partially allow this reconsideration and order the following:

a. T.S.’s injuries are not part of the definition of “minor injury”.

b. The Tribunal’s decision regarding the following medical benefits is cancelled and T.S. is entitled to payment of these benefits together with interest pursuant to the Schedule:

• Treatment plan dated June 1, 2015 for $2,755.06,

• Treatment plan dated November 5, 2015 for $2,399.49,

• Cost of examination for an orthopaedic assessment for $2,460.00, and

• Cost of examination for an in home assessment for $2,248.90

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: July 27, 2018

Footnotes

1. 1O. Reg. 34/10.
2. 2See Scarlett v Belair Insurance, 2015 ONSC 3635 and Calliste v. State Farm Mutual Automobile Insurance Company, 2016 ONSC 1854.
3. 3Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 citing Driedger on the Construction of Statutes (3rd ed. 1994) at page 87.
4. 4Superintendent’s Guideline No. 02/11 and Superintendent’s Guideline No. 01/14
5. 5See Nova Scotia (Workers’ Compensation Board) v. Martin 2003 SCC 54, [2003] 2 SCR 504 and definitions of chronic pain in Applicant's Reply Book of Authorities: Chronic Pain Syndrome: What is Chronic Pain Syndrome, Institute for Chronic Pain, Murray J. McAllister (PsyD), Executive Director of the Institute for Chronic Pain [date of publication April 27, 2012; date of modification September 8, 2016] (TAB A); American Chronic Pain Association, Glossary (TAB B); What is Chronic Pain, Australian Pain Management Association (TAB C).
6. 6Superintendent’s Guideline No. 01/14 at page 14.
7. 7American Chronic Pain Association, Glossary (TAB B, Applicant's Reply Book of Authorities).
8. 8Supra note 7, at page 3.
9. 9The Tribunal did not provide an analysis for its denial of the benefit described in issue 4(vii), the in home assessment for $2,248.90, except to say (in paragraph 7) that the finding of “minor injury” means that the applicant is not entitled to the benefit claimed as the amounts claimed fall beyond the cap imposed by the “minor injury” (in paragraph 52).